That means that during his presidency, President Joe Biden may see the rollback of federal protections to abortion care with far-reaching implications for millions of women — which could likely send many back to the days of illegal abortions.
The immediate outcome is out of Biden’s control. He has no ability to sway the court’s six-member majority, and lobbying the justices publicly would be ineffective at best, and a breach of constitutional protocol at worst.
But millions of people — his voters and otherwise — may lose their reproductive freedoms on his watch. And some pro-choice activists want more from Biden — a sense that he cares, is angry, and will at the very least help manage the fallout from a catastrophic court decision.
“As the leader of the Democratic Party and the leader of the country, we would like to have more vocal and full-throated support of abortion from him,” said Destiny Lopez, co-president of the abortion rights organization All* Above All. “I would, in some ways, divide up Biden and his administration because I do think that the administration as a whole — through surrogates and different leaders within the administration — has been moving the ball forward on addressing attacks on abortion.”
The case currently threatening Roe centers on a 2018 Mississippi law that bans abortion at 15 weeks. The law, which was debated in front of the Supreme Court in December, is a direct contradiction of Roe, which made it a constitutional right to access abortion until a fetus becomes viable at around 24 weeks. The decision, expected sometime this spring, could strike down the law, meaning Roe would remain intact. But advocates and experts agree that the court’s conservative majority signaled it would likely uphold the law by either banning abortion outright or moving the viability line.
HuffPost spoke with over a dozen pro-choice activists and Democratic lawmakers to see if they believe Biden and his administration are doing enough to combat the onslaught of attacks on abortion care. Many abortion rights advocates are frustrated with Biden, telling HuffPost they believe he has been uncharacteristically quiet on the crisis of abortion access facing the country. Elected Democrats, meanwhile, were largely supportive of Biden’s efforts — though with some scattered hints that more is needed.
The Biden administration declined to comment to HuffPost.
Abortion Rights Advocates Are Frustrated
“Biden has been in office for one year and he has yet to use the word ‘abortion’ with his own mouth. I don’t know how to view that as anything other than insulting and turning your back on people who have and need abortions in this country,” said Bracey Sherman, who has been keeping track of Biden’s remarks. “Honestly, how else am I supposed to take that? How am I supposed to believe you when you say you are going to help uphold Roe?”
The president has commented on the importance of abortion access, carefully using terms like “Roe v. Wade” or “reproductive rights.” It wasn’t until the Texas abortion restriction passed in September — 224 days into his presidency — that Biden used the word “abortion” in two written statements published by the White House. That same day, Biden also used the word “abortion” in a tweet responding to the Texas law. To date, Biden has never said the word “abortion” in oral remarks.
Although Biden made ending violence against women a centerpiece of his 2020 campaign, his record on abortion rights is somewhat mixed. When he first joined the Senate in 1973, the year Roe was decided, he voted in favor of allowing states to overturn the Supreme Court decision.
“I don’t like the Supreme Court decision on abortion. I think it went too far. I don’t think that a woman has the sole right to say what should happen to her body,” Biden said in a Washingtonian magazine interview at the time.
For the majority of his political tenure, Biden supported the Hyde Amendment, which denies insurance coverage for abortions to people who receive their health care through government-sponsored plans like Medicaid. He changed his tune in 2019 after facing criticism from fellow presidential candidates, and reversed his stance on Hyde.
“Biden has been in office for one year and he has yet to use the word ‘abortion’ with his own mouth. I don’t know how to view that as anything other than insulting and turning your back on people who have and need abortions in this country ... How am I supposed to believe you when you say you are going to help uphold Roe?”
Even mainstream pro-choice organizations with close ties to the Democratic Party diplomatically aired some frustrations.
“We are at crisis moment for abortion access in this country, and we need a proportionate response from all levels of government, including the executive branch,” said Jacqueline Ayers, senior vice president of policy, organizing, advocacy and campaigns at Planned Parenthood Federation of America. “President Biden has ordered a ‘whole-of-government’ response to address the ongoing challenges to abortion access, and the steps that the administration has taken thus far have been critical and needed. But much more can — and must — be done to blunt the barrage of attacks on our reproductive freedom. We encourage the administration to leave no stone unturned as they seek to protect abortion access.”
Like Ayers, most of the advocates HuffPost spoke with made an important distinction between Biden himself and his administration, noting that the latter has made significant moves to protect Roe and abortion access on the state level.
And it’s true, the Biden administration has done a lot of work to repeal much of the anti-abortion policies put in place by former President Donald Trump. During Biden’s first few weeks in office, he rescinded the global gag rule and later dropped the Hyde Amendment from his presidential budget proposal. Biden’s administration also reversed a Trump-era guideline that barred U.S. health care providers from receiving federal funds if they discussed abortion care with patients.
More recently, the White House signaled strong support for reproductive rights, including a statement backing the Women’s Health Protection Act, a bill that could provide integral protections to federal abortion access. In September, the Department of Justice filed a lawsuit against the draconian Texas abortion restriction, and the Biden administration gave out grants to help Texas clinics meet the needs for contraceptive and family planning services.
Under the Biden administration, the U.S. Food and Drug Administration recently announced that it will lift certain requirements around medication abortion ― making it easier to access abortion pills across the country.
The Department of Health and Human Services announced last month the creation of an Intra-agency Task Force on Reproductive Healthcare Access meant to explore any “means to protect and bolster sexual and reproductive health and rights in the U.S. and around the world.” Days later, Vice President Kamala Harris celebrated the 49th anniversary of Roe v. Wade in a video statement, promising Americans that the administration “will fight to protect a woman’s right to choose.”
But activists still want to see more heat from the president himself.
“We know one of the only ways we will win and reclaim access to abortion in this country is if we destigmatize it — and destigmatizing means we need to say it,” said Lopez. “It would be incredibly meaningful for people seeking abortion care in this country to hear Biden say the word, to hear him talk about the issue, to acknowledge that he probably knows and loves someone who has had an abortion.”
Democrats Believe Biden Has Done Enough
On Capitol Hill, Democrats were largely more supportive of Biden’s efforts.
“I don’t think there’s a question whatsoever about whether the Democratic Party or President Biden is pro-choice,” said Sen. Kirstin Gillibrand (D-N.Y.). “We 100% support women’s reproductive freedoms and their basic civil rights and civil liberties where the Republican Party does not.”
Sen. Tammy Duckworth (D-Ill.) agreed. “I think he’s made his position very clear that he supports choice. I think that’s fine. I don’t think he needs to do anything else,” she said.
Rep. Judy Chu (D-Calif.), lead sponsor of the Women’s Health Protection Act in the House, told HuffPost last month that the Biden administration “has been a world of difference” from the former Trump administration when it comes to advocating for abortion and reproductive health. “I think he’s done everything possible to show his support in terms of his actions,” she said.
Some Democrats, however, did appear to be nudging Biden into a more forceful position when questioned by HuffPost last week.
“The United States Supreme Court is now an extremist board that is threatening to take away a long-standing legal precedent that has protected millions of women. We need everyone to raise their voices, and that’s true all across the country, across parties and all walks of life,” Sen. Elizabeth Warren (D-Mass.) said when asked about her thoughts on Biden’s stance on abortion rights.
Warren was one of Biden’s fellow presidential candidates who ripped into Biden for his support of the Hyde Amendment during the 2020 campaign. Her criticism was the main driver of Biden reversing his stance on the policy.
Sen. Richard Blumenthal (D-Conn.), a lead sponsor of the Women’s Health Protection Act in the Senate, echoed Warren’s statement. “If the Supreme Court overturns or drastically restricts Roe, we’ll need the president’s leadership front and center, very energetically and vocally because so much will be at stake in women’s health care and reproductive health.”
‘He Really Could Transform The Conversation’
There’s no doubt that Biden is now pro-choice, but his murky track record on abortion rights still follows him. Jamie Manson, president of Catholics for Choice, chalked up some of Biden’s apparent discomfort in talking about abortion to his faith. Biden is one of the few pro-choice politicians who is also an observant Catholic.
“I have no doubt that President Biden is part of the 68% of Catholics who support legal protections for Roe v. Wade,” said Manson. “I think there’s a generational issue going on with older Catholics where there is still some entrenched taboo around abortion. I really do think he supports abortion rights.”
Despite his Catholic faith, Biden has been very outspoken and explicit about his support for the LGBTQIA community and same-sex marriage. Manson hopes he can take the same approach to abortion access. “Democratic people of faith really look up to him, and so his saying ‘abortion,’ and doing that destigmatizing work — even in small symbolic ways — would go a really long way. There’s never been a moment like now to start doing that.”
Although much of the power is in the hands of the Supreme Court justices, there is still time for Biden to become a vocal advocate. And there really is no better time than now. Last year marked the largest wave of abortion restrictions since Roe was decided. Over 20 states passed severe restrictions in 2021, including the most extreme anti-abortion law the country has ever seen — the Texas law that deputizes private citizens to enforce a ban at six weeks. Several states have already introduced Texas copycat bills, and a handful of other states filed 15-week abortion ban proposals in preparation of Roe falling. In the first few weeks of 2022 alone, more than 180 anti-abortion bills were filed in 37 states.
Biden has the charisma and political weight to not only ring the alarm on abortion rights, but also to galvanize Americans to fight alongside him, said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center.
“What we need to see is the president be fiery and passionate in speaking about abortion. Much like he was recently with voting rights. He can do it. And he will do it when he’s moved by the issue,” she said.
Biden gave an impassioned speech on voting rights earlier this year, likening the senators who opposed the legislation to segregationists of the 1960s. Many activists believed Biden should have been advocating for voting rights like this last year, and his spirited speech came too late. The voting rights bill died in the Senate just over a week after Biden’s speech.
“He still has that discomfort, I think, but he has surrounded himself with people who are comfortable with it like the vice president and people on the gender policy counsel,” said Borchelt. “If he could just open himself up to hearing from them and understanding what it means to lose abortion access and how to talk about it from a place of values. He really could transform the conversation in this country.”